Brett Rees v CingleVue International Pty Ltd

[2014] FWC 4844

[2014] FWC 4844

The attached document replaces the document previously issued with the above code on 28 July 2014.

The reference to the Respondent’s representative in the Appearances has been corrected to “MDS Legal”.

Kylie Kinsela

Associate to Deputy President McCarthy

30 July 2014

[2014] FWC 4844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Rees
v
CingleVue International Pty Ltd
(U2013/16410)

DEPUTY PRESIDENT MCCARTHY PERTH, 28 JULY 2014

Application for relief from unfair dismissal.

Background

[1] Mr Brett Rees (the Applicant) was dismissed from his employment with CingleVue International Pty Ltd (the Respondent) on 20 November 2013. The Applicant had been employed by the Respondent in the position of System Administrator since 18 February 2013. The Applicant made an Application for Unfair Dismissal (the application) and as there were disputed matters of fact I held a hearing to determine the application. There was some conjecture regarding whether the Respondent was a small business employer, however the Respondent did not contend that, so I dealt with the application on the basis that there were no initial matters that were required to be determined.

[2] The Applicant was dismissed at a meeting on 20 November 2013. A letter of termination was given to him on that day. The letter stated that the combination of reasons for dismissal was a poor performance and the failure to meet agreed target dates for various tasks and projects. The Applicant disputes that his performance was unsatisfactory. He also disputes that he was warned about his performance nor given a reasonable opportunity to improve. Although it was not expressly stated, it was apparent from the evidence that another element that led to the dismissal of the Applicant was a friction that clearly existed between the Applicant and Mr Anuradha Coorey Bulathsinghala (Mr Coorey).

[3] Evidence was provided by written statements and supported by oral evidence. The Applicant was the only person to give evidence in support of the Applicant’s case. Evidence was given in support of the Respondent’s case by Mr Coorey (the Senior Project Manager), by Mr Gregory Uche Tolefe (the Managing Director and Chief Executive Officer of the Respondent) and Mr Anthony Pearce (the Network Infrastructure Engineer). Mr Coorey is located in Melbourne, Mr Tolefe and Mr Pearce in Perth.

[4] There were a range of matters that were raised by the Respondent in support of their contention that the Applicant did not perform his functions satisfactorily. For convenience I will describe the performance related issues under two broad headings of (i) general incidents that gave rise to concerns about the Applicant’s capacity, and (ii) a number of incidents and issues relating to the Applicant’s handling of an infrastructure upgrade that he was involved with, if not primarily responsible for.

[5] There were also a range of matters, or more accurately a sequence of issues and concerns by the Respondent that arose out of the Applicant’s handling of a major project with an important client. Given my findings in respect of the other issues it is not necessary for me to canvass this element in my deliberations.

[6] Finally there were strong arguments by the Applicant about the procedures involved leading up to and the decision about his dismissal.

[7] Each of these range of matters is disputed on the facts, or the seriousness of them, the consequences from them, and the fairness to the Applicant about them. There were strong criticisms by the Applicant about the expectations of him. He gave evidence about his workload and what he regarded as unreasonableness and unfairness.

Consideration and evidence

[8] I have given consideration to all of the matters raised, however I will not canvass all of those matters raised. Rather I will address the nature of some of the complaints of the Respondent that I consider do not reasonably display any proficiency, or any other conduct, or capacity issues of the Applicant and also some of the allegations where the Respondent did have grounds for concerns about the Applicant’s capacity.

Performance and Capacity - General incidents

[9] The complaints about the Applicant’s performance (I use the terms performance and capacity interchangeably throughout this decision) involved a number of incidents, most of which in isolation would not warrant serious disciplining and in some instances probably did not warrant any discipline at all. An example of one incident the Respondent raised was a software installation upgrade failure. The Applicant says that he spent a lot of time reading the documentation and vendor notes prior to installing the upgrade only to find out at the end of the installation process that an intermediary step was not followed because the license for the intermediary upgrade necessary for the latest version upgrade had expired, notwithstanding that the currency of a license for the latest upgrade version was current. The Applicant says, and I accept his version of this incident, that the vendor documentation was silent on the issue. I consider that many reasonably proficient persons would most likely have experienced the same installation failure.

[10] Another criticism of the Respondent was that the Applicant failed to arrange for the installation of a firewall for the Respondent as quickly as he should have. Mr Tolefe evidenced that he raised the issue with the Applicant in about March 2013 yet it was not until October 2013 that it was installed. The Applicant evidenced that he raised the concerns about the firewall soon after he commenced work. The Applicant stated that it was “an accident waiting to happen” and referenced the firewall “which was already crashing on a regular basis was a Linksys firewall, which was on-loan to the company” apparently from another employee. Moreover, the Applicant says that he “notified Mr Tolefe and Mr Coorey that this item of equipment was antiquated and was unreliable, and required immediate replacement. I then went and procured quotations for replacement of this machine with a Cisco firewall/router and gave these to Mr Tolefe for his purchase approval. Approval was never granted”.

[11] Mr Tolefe’s own evidence was that the Applicant had provided him with an options paper regarding the firewall on 12 March 2013. The instruction he gave the Applicant was that he did not want a stop-gap measure but rather that he “wanted the full solution” and that he “wasn’t prepared to spend money willy-nilly”. With a qualified direction of that nature it does not seem fair that the Applicant should then be criticised for having the firewall installed as part of the major infrastructure upgrade.

[12] This firewall incident to my mind exposes two inconsistencies in the Respondent’s approach. On the one hand the Respondent criticises the Applicant’s tardiness in addressing some matters they regard as urgent but on the other hand were clearly tardy themselves with a major security risk exposure that the Applicant had brought to their attention. The second inconsistency is that that the Respondent infers that the Applicant had failed in not diligently following up on the issue yet he was a new employee when he raised the matter, he raised the issue and then followed the direction he was given to provide a solution but was then never given any response to the options he had provided. I accept the Applicant’s evidence on this issue, especially as he gave a clear and precise account of the events. If any criticism was to be levelled at anyone regarding the firewall incident it should not have been directed at the Applicant.

[13] Another incident the Respondent directed criticism at the Applicant about was the telephone system. Mr Tolefe gave evidence that after the Respondent’s infrastructure upgrade that the Applicant “could not configure the telephone system to work properly.” He stated that he “raised the issue with him and asked him to fix the problem, but it was never fixed”. Mr Tolefe however also gave evidence that the telephone system was in the scope of works of its contractor for the infrastructure upgrade. Whilst there may be some residual or subsequent responsibility of the Applicant regarding the telephone system properly functioning, the Applicant cannot fairly be accused of lacking a capacity or not performing a function when he was not directly, nor probably even indirectly, responsible.

[14] Another example was the accusation of Mr Coorey that the Applicant was dilatory in not ensuring that licenses for some Microsoft products did not expire. The products involved were the standard types of Microsoft Office products many organisations use in day to day operations. The sequence of events relating to this were that on 18 July 2013 Mr Coorey requested the Applicant provide him with pricing on Microsoft Office licenses. The Applicant did not initially respond resulting in Mr Coorey repeating the request on 29 July 2013. The Applicant responded on 2 August 2013, but Mr Coorey wanted some clarification on some issues. The Applicant responded on 13 August 2013. Mr Coorey then queried whether the licenses were perpetual licenses to which the Applicant confirmed the following day that they were. On 16 August 2013 Mr Coorey’s licence expired and he was thus unable to use the product. Mr Coorey queried the Applicant whether he had bought the licenses. Mr Coorey eventually purchased the licenses himself.

[15] However, as the Applicant explained he was only requested to purchase the licenses by Mr Coorey on 14 August 2014. Furthermore, he says he did not have authority to make purchases, a claim that was not challenged by the Respondent. It was also not challenged by the Respondent that Mr Coorey did not request purchasing the licenses in July 2013, but rather pricing for them and subsequently other information related to a purchase. Thus, the essence of the complaint about the dilatory conduct of the Applicant appears to centre around a request made to purchase two days before the expiration of the licenses and an authority to purchase that the Applicant did not have.

Performance and Capacity - Infrastructure Upgrade

[16] The events were with the background that the infrastructure project was raised with the Applicant before he was engaged as a matter of significant importance and a priority for the Respondent. When the Respondent employed the Applicant they were clearly confident that he could manage the project competently and efficiently. That confidence was eroded through a series of events canvassed. Whilst most of the matters that caused the erosion of confidence in isolation were not critical failures the accumulation of concern did diminish the confidence of the Respondent in the Applicant.

[17] The Applicant got off to an unfortunate start with the Respondent in dealing with this project. A meeting was planned for the Applicant to give a presentation presumably of his analysis of the scope of the project and an outline of his proposals as to how it would be approached and managed. The Applicant forgot about the meeting and as a consequence it needed to be rescheduled. I accept that the meeting had already been rescheduled on a number of occasions and those re-schedules were not caused or contributed to by the Applicant. However it is surprising that failing to attend an event where he was to be the main contributor occurred so early in the Applicant’s employment. He clearly “got off on the wrong foot” and it seems he never really recovered from that time.

[18] The Respondent’s confidence in the Applicant’s capacity to have responsibility for the project led to engagement of a contractor to undertake tasks they had believed he could be capable of doing himself. This included the Applicant requiring the assistance of a third party to assist him in drafting a list of materials that would be required for the upgrade. It was eventually decided that the Applicant’s role in the upgrade would be to “shadow” that third party’s employees (i.e. sit by their side and watch/learn what they were doing and help facilitate where required). This is not what the Respondent had envisaged when the Applicant was employed.

[19] The erosion in confidence in the Applicant’s capacity also led to Mr Coorey ensuring the Applicant understood his responsibilities and the timeliness of him progressing on each of his elements of the project. The Respondent inferred that the degree of oversight and supervision should not have been necessary. The performance of the Applicant in meeting his targets or having a reasonable explanation as to why they were not met were a primary reason for increased concern about his competence. The expectations of the Respondent were not unreasonable, especially as it was evidenced that they were agreed between Mr Coorey and the Applicant, without demur from the Applicant when they were agreed.

[20] The Applicant also did not meet Mr Coorey’s expectations in finalising the appointment of the third party contractor. It was important that the contract was finalised in order that the commencement of works would not be delayed. The task appears to have basically been formally notifying acceptance of the quote. The task was described as important but not onerous, or complicated. Mr Coorey telephoned the Applicant early in the morning (7:45am AWST) to make the request that the Applicant perform that task and left a voicemail message to that effect, as the Applicant did not answer (there was no criticism implied for not answering at that time). An email was also sent immediately after leaving the voicemail message. There was no response to either the voicemail message or the email by 10:00am so Mr Coorey rang the Applicant again. Mr Coorey states that when he explained his request and the urgency involved the Applicant raised his voice and shouted “How many tasks do you want me to get done?”. There was then an interchange ending with the Applicant “abruptly hung [hanging] up the phone”. Mr Coorey immediately tried to ring back but his calls were not answered.

[21] This was not the only occasion where the Applicant hung up on Mr Coorey or in his words “terminated the call”. A later occasion on 6 November 2013 involved a discussion where Mr Coorey apparently believed the Applicant had undertaken to perform a task on the previous day which the Applicant disputed. The Applicant described the incident and his view of it in the following way:

“I terminated the call, and was immediately feeling very stressed and anxious. I can understand that the employer-employee relationship allows for an employer to give fair directions and tasks in line with the nature of the job and the employee’s skills and experience. However, it does not give the employer the right to force the employee to agree with their dishonesty.”

[22] Mr Coorey evidenced that after the phone call ended:

“The conversation was on Skype and I was unable to call him back as the program indicated he had gone offline as soon as he ended the conversation. I called the CingleVue office in Joondalup and asked for Brett but was advised that he had left the office. I immediately sent Brett an email outlining what had happened and asking when he would get back to me in relation to the list of tasks. I did not receive a response to the email”

[23] Regardless of which account of this incidents is the more accurate it does not justify the reaction of the Applicant in firstly hanging up on Mr Coorey and secondly not answering calls after he had hung up. The incident may even have been excusable if the Applicant had at a later time explained or even apologised that he feared he would exacerbate an already tense situation. Rather he has disputed the nature of the incident and sequence of events and he has sought to justify every action and every reaction by reverting all blame to Mr Coorey, even though he was his superior and even though he clearly over-reacted. The Applicant in his account of the November phone call fails to appreciate that in his description of this incident he (i) admits he hung up on Mr Coorey, (ii) accused Mr Coorey of dishonesty, (iii) accused the Respondent of giving unfair directions and (iv) accused the Respondent of imposing an obligation on him to agree with something he disputes. The manner in which the Applicant describes the incident appears to me to have been a gross over-reaction to what may easily have been either his or Mr Coorey’s misunderstanding of what was thought to have been a matter discussed and agreed to.

[24] The day after this incident (on 7 November 2013) the Applicant called into the Respondent advising that he was ill and would be absent from work until 18 November 2013. There is nothing contentious about the genuineness of his reason for absence. What is contentious though is the procedures and co-operation on and after 7 November 2013 in ensuring someone in authority had access to various computer system administration passwords. One of the Applicant’s responsibilities was to maintain and secure the passwords to the system. Only one other employee had access to the passwords and that person was on leave during that period. Mr Coorey had in the weeks prior to early November 2013 requested that passwords also be given to another employee of the Respondent.

[25] The Applicant asserts that he endeavoured to provide the passwords to Mr Tolefe. Part of his evidence was that:

“I attempted to share the passwords with Mr Tolefe. What happened was, I made an offsite backup disk because we had two data centres. We had one at Joondalup, one at West Perth. And what I did was I created an offsite backup disk and the backup disks for West Perth went to Joondalup and the ones for Joondalup went to West Perth, and I’d created a set of these backup disks and I made one of them - the backup disk I made and I wrapped it in foam and I sent Mr Tolefe an email saying, “Look, I’ve given this backup disk to Janine Gustavino, the PA. Can you please take it home,” because it had all the data, all the passwords, everything on it, and it sat at Ms Gustavino’s desk for weeks. In the end I found it sitting on the floor beside her desk. I removed it back into the computer room because it wasn’t a suitable place to be keeping this.

And when was that?---This was like back in April or something.

And so you did not make any further attempt to provide Mr Tolefe with the passwords?---Not until he asked for it to be provided in November.”

[26] Mr Tolefe however explained that he was “not that technical” and that whilst he may have been provided with disks with passwords on them that he “wouldn’t know how to access them”. In answer to a question in cross-examination by the Applicant Mr Tolefe explained that “Your question was did you provide backups and, yes, you sent me an email to say that you’d taken backups. They needed to be off site. The details in terms of what was on the backups were company data. There was no specifics around the passwords”.

[27] I accept Mr Coorey’s evidence and the Respondent’s contention that the Applicant should have ensured reasonable and secure access by a proper means through a limited number of people to their passwords. I also accept that a request was made that the Applicant ensured a third employee have access to the passwords and he did not comply with that request. I also reject the Applicant’s explanation about this issue. His explanation that passwords were provided in April 2013 to Mr Tolefe lacks a reasonable standard of direction and information about the content of the disks he placed the passwords on and how to access and use those passwords. I prefer Mr Tolefe’s evidence regarding his knowledge of his possession of any passwords.

[28] What is also indicative about the approach of the Applicant to his relationship with the Respondent was the following evidence and interchange regarding his attitude about his responsibilities and relationship with the Respondent:

“CingleVue were not not in a position where they didn’t have access to that password database. I made efforts outside - beyond what I had to do, being sick. I didn’t have to make the offer, “Hey, if you really need to get into something, if something breaks, ring me up and I will give you the password.” I didn’t have to make that offer.

No, but what you’re saying is that the access to the system was dependent on CingleVue successfully contacting you and getting information from you? ---CingleVue had

Well, it’s yes or no?---Or Mr Chelvaraj.

Or Mr Chelvaraj, but there was noone on site and the only way to get those passwords would be to successfully contact yourself or Mr Chelvaraj?---Yes.”

[29] Mr Chelvaraj was the person referred to above that was on leave during the period the Applicant was on sick leave in November 2013.

[30] I find that Applicant was not as diligent as he should have been for a person in his position to ensure appropriate persons had access to system passwords so that the systems could be safely and securely accessed at any time. Rather he appears to have the attitude that it was a matter of his generosity to be applied at his discretion.

[31] Another element of the Respondent developing a lack of confidence in the Applicant concerned a risk to the security of their network system by persons not employed by the Respondent. The issue relates to the involvement of the third party contractor during the infrastructure upgrade.

[32] The Applicant explained password practices during upgrades as follows:

“Ordinary practice is that the passwords change when the installation of the new equipment is complete and it’s handed over to the customer, because vendors are constantly having to log in and fix little things that are still broken. If you change the passwords too early then as soon as the vendor goes to log in to fix something, you’re going to have to turn around and tell them what the new passwords are, so it makes sense to keep them unchanged until the very last moment, and we say, “Okay, it’s all changing over now.” Handover, bang, change them.”

[33] The assertion by the Respondent’s is that a simple password to their network system was made available to the third party contractor during their upgrade and that the final step of creating a new and more complex password was not created. They assert this made their system open to access by persons it should not have been accessible to.

[34] Mr Coorey evidenced that the employees of the third party, one of whom was Mr Pearce who was later engaged by the Respondent, said to him that: “Look, Anu, we have handed over the passwords to Brett and we have even advised him to change it”.

[35] There seems little doubt that the passwords were not changed until 18 November 2013.

[36] The Applicant seemed to suggest that because there were other works undertaken in October 2013 by the third party contractor that the works had not been completed and therefore any security protocol was not breached. He also suggested that because one of the employees of the third party contractor was later employed by the Respondent that the passwords did not create any risk.

[37] I do not accept these explanations. There appears to be little appreciation by the Applicant of appropriate and diligent practices regarding password security. A more prudent approach would surely have been to change the password on every occasion where there were likely to be periods of no, or little works, being undertaken by the third party contractor and replacing the more complex and secure password on a temporary basis. Furthermore, it is patently clear from the evidence that the third party contractor did not want to have access to the Respondent’s network probably because if there was any security breach then no blame or suspicion could be directed at them.

Friction with Management

[38] What emerged and was evident during the proceedings was a strong friction between the Applicant and the management of the Respondent’s managers. Importantly, the confidence of the Respondent about the Applicant appears to have diminished with each event and interaction. The Applicant’s opinion of the Respondent’s managerial practices and competence waned to the point of becoming counter-productive. What appears to me to have occurred is that as the Applicant and Mr Coorey in particular had more contact with each other they both formed poor opinions about each others’ competence.

[39] Both parties share the responsibility for this poor relationship developing. For example the Applicant explained during the interview process his personal circumstances and the need to take time off during the year to spend time with his children. The Applicant asserts, and it was not contradicted, that there was agreement reached to accommodate the Applicant with his leave prior to him being engaged. When the Applicant made an application for leave in accordance with that agreement Mr Coorey failed to either approve or reject this leave. This left the Applicant in an awkward position in being unable to properly plan to be with his children during the period he had requested leave for. The Applicant stated that “This lack of communications between myself and Mr Coorey and game-playing on the part of Mr Coorey caused me great distress”.

[40] The Applicant also gave some examples where there was a lack of communication from management that resulted in his work either being duplicated or undermined. Whilst there may have been some mitigating factors and shared blame for the souring of the relationship between the Applicant and the Respondent the view is inescapable that by mid November 2013 the Respondent had lost confidence in the Applicant and the Applicant had lost confidence in the Respondent.

Consideration and decision

[41] The findings above cause me to form the view, and find, that there was a valid reason for the Applicant’s dismissal. Whilst the Respondent did not expressly state that a reason for dismissal was a loss of confidence the thrust of the evidence was directed at that fact. I find that a reason for dismissal was a loss of confidence in the Applicant’s capacity and that there were sound grounds for the Respondent to reach that conclusion. I also find that the level of performance expected of the Applicant was reasonable. I have made findings above that there were events and incidents where the Respondent formed an adverse view about the performance of the Applicant where there were reasonable explanations, or for which he could not reasonably be held responsible, those matters must be considered in the light of more serious issues relating to his overall performance. Simply put the Applicant’s performance did not meet the expectations of the Respondent for the position he held and the responsibilities it entailed. It should not be inferred from my finding that the Respondent had justifiably lost confidence in the Applicant’s capacity that the Applicant is, or was, incompetent for any role. Rather the Applicant’s competence and capacities were not aligned to the role he was employed to undertake and the expectations of the Respondent in respect of that role. I find that the loss of confidence by the Respondent was a valid reason for dismissal.

[42] Another and related reason of the dismissal was the existence of an extremely poor working relationship between the Applicant and Mr Coorey in particular, but the management of the company in general. The communications between the Applicant and Mr Coorey and the eventual lack of a productive co-operation by the Applicant with Mr Coorey included hanging up on Mr Coorey on a number of occasions and not being available at times Mr Coorey was endeavouring to discuss matters with him. The Applicant had a number of options that he could have taken to rectify or overcome the difficulties he was having in his relationship and communications with Mr Coorey. Despite efforts by Mr Tolefe to resolve the problems and mediate their differences the Applicant embarked on a course of criticism and blame shifting seemingly with an intent to cast aspersions on Mr Coorey and the Respondent. The Applicant’s conduct and associated attitude when he went on sick leave by not ensuring administrative password access was available to appropriate staff whilst he was absent was also conduct that was indicative of a poor working relationship. I find that the Applicant’s conduct in these matters was conduct for which there was also a valid reason for his dismissal.

[43] In August 2013 during and following a discussion between Mr Coorey and the Applicant Mr Coorey advised the Applicant that he intended to put a performance improvement plan in place for the Applicant. On 20 August 2013 the Applicant emailed Mr Tolefe and referred to the conversation with Mr Coorey including his assertion that Mr Coorey was using a performance review as a means of a disciplining process. Mr Tolefe on 21 August 2013 replied to the Applicant that the intention was for a performance improvement programme as distinct from a performance review. Mr Tolefe also stated in that email that “let me make it clear to you - ......- stressing as adult employees, I expected all staff to be treated with respect and dignity” . Mr Tolefe was referring to a conversion where he had canvassed issues with the Applicant on the previous Saturday. It is clear that the matters canvassed at that time were concerns raised about the lack of a working relationship between the Applicant and Mr Coorey.

[44] On 23 October 2013 Mr Coorey sent an email to the Applicant identifying concerns he had with the meeting of target dates for task to be completed. The email included a statement that: “take this email as a formal warning, as I am not happy with your performance, and as your line manager I lack confidence in you to deliver on-time”. Sadly the raising of the concerns of the Respondent did not have the effect that Mr Tolefe in particular had endeavoured to achieve. It would not appear as though the Applicant was given an opportunity to respond to those emails. In the circumstances this did not, in my view, constitute a failure of the Respondent to give the Applicant an opportunity to respond at all nor did it not give him an opportunity to improve his performance nor his conduct.

[45] I find that the performance and conduct issues were bought to the Applicant’s attention and he did have the opportunity to discuss and respond to the concerns raised. In the context of the application, the sequence of events and form of communications involved, in my determination I have given little weight to this element in my considerations.

[46] I find that the Respondent did not refuse any request by the Applicant to have a support person present when any of the concerns were discussed, but in any event this issue had little weight in my determination. The Applicant had been warned about his performance implicitly and expressly.

[47] It is unclear what the actual size of the Respondent’s business was but it appears to have been small, although not a small business employer as defined by the Fair Work Act 2009. The size of the Respondent’s business had little impact on the procedures followed and I attach little weight to this issue in reaching a determination. There appears to have been no human resource expertise available but that absence did not impact on the procedures followed in effecting the dismissal.

[48] After taking into consideration the issues canvassed above I find that the dismissal was not harsh, unjust, or unreasonable and thus was not unfair. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Rees on his own behalf.

Mr J Burke of MDS Legal for the Respondent.

Hearing details:

2014.

Perth:

June 24.

Final written submissions:

Applicant, 16 July 2014.

Respondent, 16 July 2014.

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